Tuesday, November 01, 2005

Alito and women

A lot of the discussion of Judge Alito has focused on his ruling in Casey, a ruling upholding spousal notification and other provisions of a Pennsylvania law later overruled in a decision written by Sandra Day O'Connor, whose seat he hopes to take. While his attitude toward abortion is relevant, I think that it's more important to look at his attitude toward broader societal issues, not particular takes on special issues. His jurisprudence on issues bearing on women is particularly damning. The ruling in Casey is important in that regard, but his approach to a search warrant improperly extended from a man to his wife and daughter and his approach to the Family Medical Leave Act all reveal an indifference to the special concerns of women in American society. These concerns are especially relevant in considering a replacement for the first woman on the Court and a strong advocate for women.

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Our precedents have respected the private realm of family life which the state cannot enter. These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

…Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

It should be recognized, moreover, that in some critical respects the abortion decision is of the same character as the decision to use contraception, to which Griswold v. Connecticut, Eisenstadt v. Baird, and Carey v. Population Services International, afford constitutional protection.

In that sense, no restriction should be placed on abortion that would not be placed on contraception. For instance, a woman is under no legal obligation to inform her husband that she is using the PIll, that she is using a diaphragm or IUD, nor is he obliged to inform her prior to having a vasectomy, or any other medical procedure. Should spouses inform one another of medical procedures? Yes. And an abortion is clearly more of a shared experience than mole removal. But the law doesn't rule on what should be, but what must be.

The opinion of the Court quotes these findings from the district court's ruling [my emphasis, I also omitted some findings beyond those omitted by the Court]:

273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy.

…

279. The `bodily injury' exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or herchildren.

…

282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband's illness, concern about her own health, the imminent failure of the marriage, or the husband's absolute opposition to the abortion.

…

285. Wife battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous.

…

287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation.

288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife.

289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. . . . The battering husband may deny parentage and use the pregnancy as an excuse for abuse.

…

294. A woman in a shelter or a safe house unknown to her husband is not `reasonably likely' to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under the circumstances.

…

297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident.

298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of whether the section applies to them.

For these reasons, a requirement of notification, even with numerous exemptions, will not capture all of the cases where a woman's personal safety would or might be compromised by notifying her spouse.

As O'Connor wrote for the majority:

This information and the District Court's findings reinforce what common sense would suggest. In well functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. …

The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.

This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.

…If this case concerned a State's ability to require the mother to notify the father before taking some action with respect to a living child raised by both, therefore, it would be reasonable to conclude as a general matter that the father's interest in the welfare of the child and the mother's interest are equal.

Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman. … If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.

There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. Illinois, three Members of this Court reaffirmed the common law principle that "a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States." Only one generation has passed since this Court observed that "woman is still regarded as the center of home and family life," with attendant "special responsibilities" that precluded full and independent legal status under the Constitution. These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution. [my emphasis, congratulations on hanging in there]

Of course. It makes perfect sense. But not so much sense with respect to Alito and the bloc of justices he'd join.

As Judge Alito observed in his dissent below, [t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems – such as economic constraints, future plans, or the husbands' previously expressed opposition – that may be obviated by discussion prior to the abortion.

To my eye, this looks like a "father knows best" attitude that O'Connor dismissed as clearly "no longer consistent with our understanding of the family, the individual, or the Constitution." The dissent places the woman's individual rights to self-determination and privacy below the husband's interest in procreation within marriage and the State's interest in "the integrity of the marital relationship," and seem to be following Alito's lead in doing so.

(While a comparison to Scalia would be informative, his dissent is, in my opinion, petty, whiny and lacking in substance. His opinion does not address spousal notification except to criticize the majority's process and writing style. I said before that Scalia's jurisprudence tends to be political, not intellectual, and this dissent is a perfect example. Consider the test he applies to reach his conclusion that abortion cannot be a "protected liberty": "I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected--because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed." Indeed, the same could have been said of segregated schools prior to Brown v. Board of Ed. Find me the place where segregation is mentioned in the Constitution. It was certainly a longstanding tradition of American society. The third prong of the Scalia test is: (3) It doesn't mesh with Scalia's political views.)

Alito's attitude toward women in Casey is not an isolated incident. In a dissent to a ruling on a search warrant (PDF), Alito upheld a stripsearch of a mother and 10 year-old child when the warrant didn't identify them as people to be searched. The argument is fairly technical, and basically boils down to what the expectation of an officer ought to be. If a warrant names a place and a person, can other people present be detained and searched? The majority said "no," Alito said yes. Setting aside arguments about whether an affidavit should be included in the warrant, the issue is whether the woman and child have 4th amendment rights independent of the man of the house. The majority said they did, Alito did not. Shades of "a woman had no legal existence separate from her husband."

I acknowledge that this is not some broad statement about women, but we're looking at attitude and approach, inherent biases, not explicit prejudice. Most cases have a broad grey area, and analyzing rulings requires a bit of nuance.

But what I actually meant to write about was the Family and Medical Leave Act.

The Supreme Court, in upholding FMLA, held that "The FMLA aims to protect the right to be free from gender-based discrimination in the workplace," because it ensures equality for men and women regarding pregnancy, child care and care for the sick. Some of those are always female responsibilities, others simply tend to be. As a result of these inequities, women tend to suffer. Where leave was provided for, it often was made available as maternity leave to women only.

FMLA guarantees 12 weeks of unpaid leave regardless of gender. The gender aspect was a clear part of the legislative history of the bill. The Supreme Court upheld it on the basis of its role in equalizing gender discrimination by a margin of 6-3.

In a passage that one suspects Justice O'Connor may have helped craft, the majority writes:

The impact of the discrimination targeted by the FMLA is significant. Congress determined:

"Historically, denial or curtailment of women's employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women's roles has in turn justified discrimination against women when they are mothers or mothers-to-be." Joint Hearing 100.

Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

If that sounds familiar, it's not far from the attitude that O'Connor described "no longer consistent with our understanding of the family, individual or Constitution."

But Alito managed to see things differently, and to bring the 3rd Circuit with him. Noting Congress's finding that "'the primary responsibility for family caretaking often falls on women' and has a greater effect on their work than it does on men," he nonetheless holds that

Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause. For example, Congress did not find that public employers refused to permit as much sick leave as the FMLA mandates with the intent of disadvantaging employees of one gender. (Indeed, it is doubtful that a practice of allowing less sick leave than the FMLA requires would even have a disparate impact on men and women.). Nor are we aware of any substantial evidence of such violations in the legislative record.

These passages literally abut in the text. To my eye, the only way to justify this is to claim that the intent is not discriminatory. But congress acted to ensure equal protection. The situation Alito describes is very much like a system of separate but equal responsibilities of men and women.

To reject FMLA, one would have to conclude one of the following:

the genders have equal opportunity

existing gender differences are not congress's problem

women do not deserve protections as stringent as other protected classes

Since the first is not an option given his quote from the legislative findings, he must be relying on one of the latter two. Neither is acceptable. They put him in a tiny minority with Justice Scalia, Thomas, and Kennedy, a crowd which may now swell to majority status depending how Roberts swings compared to Rehnquist. Rehnquist wrote the majority opinion, and until we know more about Roberts, it's reasonable to treat him as a proxy for Rehnquist.